Jeffrey Burke, Appellant V. Estate Of Charles Elfrink-thompson, Respondent

VJ - L• • i J 	j \ . . t '-
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JEFFREY BURKE and KIMBERLY
BURKE, a married couple,
Appellants,
v.
DALYNNE SINGLETON, as Personal
Representative of the ESTATE OF
CHARLES ELFRINK-THOMPSON,
deceased, and THE CITY OF
SEATTLE, a municipal corporation,
and JOHN DOES and JANE DOES
1 through 10, inclusive,
Respondents.
No. 72858-0-I
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	January 19, 2016
Leach, J. — Jeffrey and Kimberley Burke appeal the trial court's summary
dismissal of their negligence suit against the City of Seattle and the estate of its
deceased employee Charles Elfrink-Thompson (collectively City). 	Jeffrey Burke
suffered injuries when a truck driven by Elfrink-Thompson crossed the center line
and struck Jeffrey's1 van while rounding a curve in the opposite direction. 	Elfrink-
Thompson suffered a traumatic brain injury and died the next day.
The Burkes offer three reasons for reversing the trial court: 	first, res ipsa
loquitur supplies an inference of negligence in this case; second, the testimony of
their expert witness establishes Elfrink-Thompson's negligence as the cause of
For clarity, we refer to Mr. Burke individually by his first name.

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the collision; and third, for the first time in their reply brief, 	Elfrink-Thompson's
undisputed violation of traffic laws provides evidence of negligence, precluding
summary judgment. 	The City disputes these claims and also asserts sudden
incapacity as an alternative reason to affirm the trial court.
Much of the parties' briefing addresses res ipsa loquitur, but this case
does 	not 	involve any "peculiar and 	exceptional" facts 	to which 	the doctrine
properly applies. We reject res ipsa loquitur as a basis for reversal.
The Burkes contend the trial court erred by excluding testimony from their
accident reconstructionist, 	Steve Harbinson, which demonstrated that Elfrink-
Thompson probably caused the accident because he was speeding or distracted.
Because Harbinson applied his expertise as an accident reconstructionist to the
evidence 	to 	reach 	this 	conclusion, 	the 	trial 	court 	abused 	its 	discretion 	in
excluding Harbinson's testimony.
Normally, this court declines to consider arguments raised for the first time
in a reply brief. 	We do so here because the ends of justice require it. 	Both
Jeffrey's testimony and 	that of the accident investigator showed that 	Elfrink-
Thompson 	violated 	traffic laws 	before 	and 	during 	the 	accident. 	Although
Washington has eliminated negligence per se, evidence of a statutory violation
still provides evidence of negligence. 	Therefore, the 	Burkes demonstrated a
genuine issue of material fact as to breach preventing summary judgment.
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NO. 72858-0-1 / 3
Finally, the City contends it has a complete defense of sudden incapacity
based on testimony that Elfrink-Thompson likely suffered a mild heart attack just
before the accident. 	But because testimony from the Burkes' expert establishes
a genuine issue of material fact, we disagree. We reverse and remand for further
proceedings.
FACTS
On April 21, 2010, a truck driven by Charles Elfrink-Thompson collided
with a van driven by Jeffrey Burke on Olsen Place SW in West Seattle. 	Elfrink-
Thompson lost control of his vehicle, which rotated as it drifted across the center
line. 	The City-owned truck appeared to be "fishtailing" on wet pavement. 	Jeffrey
was unable to avoid the truck, which collided with his van. 	Elfrink-Thompson
suffered a traumatic brain injury and died the next day. 	The City concedes that
Elfrink-Thompson was a City employee acting within the course and scope of his
employment.
The 	Seattle 	Police 	Department 	Traffic 	Collision 	Investigation 	Squad
(TCIS) 	investigated 	the 	collision. 	It found 	signs 	consistent with 	the 	above
account: 	a 41-foot-long tire mark running from Elfrink-Thompson's lane, crossing
the center line, and ending where the vehicles came to rest, and a scuff mark
where Elfrink-Thompson lost control of the truck. 	But the TCIS detectives could
not determine the reason Elfrink-Thompson lost control. 	The truck's sensing and

NO. 72858-0-1 / 4
diagnostic module did not record any data on the truck's braking and throttle
functions and so did not indicate the truck's speed immediately before impact.
No 	one 	saw 	Elfrink-Thompson's 	behavior 	before 	the 	collision. 	A forensic
examination showed his cell phone was not in use, and a toxicology report came
up negative for drugs and alcohol. 	A mechanic found no defects in the truck's
brakes, tires, suspension, or steering.
The Burkes obtained the opinion of an expert, Steve Harbinson, about the
causes 	of 	the 	accident. 	Harbinson 	is 	a 	police 	officer 	and 	accident
reconstructionist for 	the 	Edmonds 	Police 	Department. 	Harbinson 	reviewed
documents on the crash and statements by Jeffrey. 	From this review and his
experience, he concluded that Elfrink-Thompson probably lost control of the truck
because he was distracted or driving too fast.
The 	City 	offered 	testimony 	from 	Carol 	Buchter, 	a 	cardiologist 	who
reviewed 	the 	accident 	records 	and 	Elfrink-Thompson's 	medical 	records 	and
autopsy 	report. 	Dr. 	Buchter 	opined 	that 	these 	records 	indicated 	Elfrink-
Thompson had suffered a myocardial injury by the time he died. 	Dr. Buchter
concluded 	that 	Elfrink-Thompson 	probably 	lost 	control 	of 	the 	truck 	after 	a
myocardial infarction rendered him unconscious.
In response, the Burkes submitted a declaration by Marshall Corson, a
cardiologist at Harborview Medical Center (HMC), where Elfrink-Thompson was
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NO. 72858-0-1 / 5
treated. 	Corson 	"check-read" 	Elfrink-Thompson's 	electrocardiogram 	(ECG)
report in the course of checking all 100 or so reports generated by HMC's ECG
machines that day. 	Corson had no contact with Elfrink-Thompson or the trauma
team treating 	him. 	After 	reviewing 	Elfrink-Thompson's 	medical 	records, 	Dr.
Buchter's declaration, and the police collision report, Dr. Corson concluded that
Elfrink-Thompson likely did not suffer a myocardial infarction before the crash
and that his traumatic brain injury probably explained the data Dr. Buchter relied
on.
The trial court granted the City's motion for summary judgment, and the
Burkes appeal.
STANDARD OF REVIEW
An appeal of a summary judgment presents a question of law this court
reviews de novo.2 Summary judgment is appropriate if there is no genuine issue
of material fact and the moving party is entitled to judgment as a matter of law.3
We view facts in the light most favorable to the nonmoving party.4 	The purpose
of summary judgment is not to cut litigants off from their right of trial by jury but to
determine ifthey really have evidence to offer at trial.5 	Whether res ipsa loquitur
2 Osborn v. Mason County. 157 Wn.2d 18, 22, 134 P.3d 197 (2006).
3 CR 56(c); Osborn. 157 Wn.2d at 22.
4 Osborn. 157 Wn.2d at 22.
5 Keck v. Collins. 184 Wn.2d 358, 369, 357 P.3d 1080 (2015) (quoting
Preston v. Duncan. 55 Wn.2d 678, 683, 349 P.2d 605 (1960)).
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NO. 72858-0-1 / 6
applies to a particular case also presents a question of law we review de novo.6
We review trial court rulings on the admissibility of expert testimony for abuse of
discretion.7
Normally, we do not consider issues raised and argued for the first time in
a reply brief.8 	Courts follow this practice out of fairness to the respondent, who
has no opportunity to argue in response.9 	But this court may review an issue first
raised in the reply brief if "'the ends of justice'" so require.10 	Because the briefing
in this case failed to give adequate attention to a decisive issue and because the
numerous fact disputes make summary judgment particularly inappropriate here,
the ends of justice compel us to consider an argument the Burkes raise for the
first time in their reply. 	We asked the parties for oral argument in part to give the
City an opportunity to address that argument.
ANALYSIS
The 	City had the burden of showing 	no genuine issue of material fact
existed as to some element of the Burkes' negligence case. 	Negligence has four
6 Pacheco v. Ames. 149 Wn.2d 431, 436, 69 P.3d 324 (2003).
7 Miller v. Likins. 109 Wn. App. 140, 147, 34 P.3d 835 (2001).
8 Ainsworth v. Progressive Cas. Ins. Co.. 180 Wn. App. 52, 78 n.20, 322
P.3d 6 (2014); In re Marriage of Sacco. 114 Wn.2d 1, 5, 784 P.2d 1266 (1990);
RAP 10.3(c).
9 City of Spokane v. White. 102 Wn. App. 955, 963, 10 P.3d 1095 (2000).
10 State v. Haberman. 105 Wn. App. 926, 933, 22 P.3d 264 (2001); RAP
1.2(c).
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NO. 72858-0-1 / 7
elements: 	duty, breach, causation, and 	injury.11 	The City contends that the
Burkes failed to present evidence sufficient to create a genuine issue of material
fact as to breach.
Violation of Traffic Laws as Evidence of Negligence
The Burkes contend for the first time in their reply that Elfrink-Thompson's
violation of traffic laws 	by swerving 	into Jeffrey's 	lane provides evidence of
negligence sufficient to preclude summary judgment. 	As discussed above, we
consider this argument because declining to do so would deny justice to a needy
party.12
"A breach of a duty imposed by statute, ordinance, or administrative rule
shall not be considered negligence per se, but may be considered by the trier of
fact as evidence of negligence."13 	Washington 	traffic laws require that "[a]
vehicle shall be driven as nearly as practicable entirely within a single lane" and
may not be driven in the left lane in a no-passing zone.14
Jeffrey testified that he saw Elfrink-Thompson's truck fishtail and swerve
into his lane. 	The collision itself occurred in Jeffrey's lane. 	Viewed in the light
most 	favorable 	to 	the 	Burkes, 	this 	evidence 	would 	establish 	that 	Elfrink-
11 Keller v. City of Spokane. 146 Wn.2d 237, 242, 44 P.3d 845 (2002).
12 RAP 1.2(c).
13 RCW 5.40.050; see Pettit v. Dwoskin. 116 Wn. App. 466, 475, 68 P.3d
1088(2003).
14 RCW 46.61.140(1), .130.
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NO. 72858-0-1 / 8
Thompson breached a duty under Washington traffic laws. 	This breach "may be
considered by the trier of fact as evidence of negligence."15
The City contends that Mathis v. Amnions16 supports summary judgment
despite the 	evidence that 	Elfrink-Thompson violated traffic laws. 	In 	Mathis.
Division Two upheld the trial court's entry of judgment on a jury's verdict that a
tractor driver was not negligent despite violating a statute that required flashing
hazard lights.17 	Mathis shows only that evidence of a statutory violation does not
prove negligence as a matter of law.18 	It can defeat a motion for summary
judgment where the question is not if the violation shows negligence as a matter
of 	law 	but 	instead 	whether 	a 	genuine 	issue 	of 	material 	fact 	exists 	about
negligence. 	Evidence of Elfrink-Thompson's statutory violation is evidence, not
complete proof, of his negligence.19 	This is all the Burkes needed to produce at
the summary judgment stage. 	The trial court thus erred in granting the City
summary judgment.
15 RCW 5.40.050.
16 84 Wn. App. 411, 928 P.2d 431 (1996).
17 Mathis. 84 Wn. App. at 419-20.
18 The City correctly points out that the legislature abolished negligence
per se in 1986. 	Hansen v. Friend. 118 Wn.2d 476, 483, 824 P.2d 483 (1992).
19 See RCW 5.40.050. 	"Proof is "[t]he establishment or refutation of an
alleged fact by evidence." Black's Law Dictionary 1409 (10th ed. 2014).
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NO. 72858-0-1 / 9
Res Ipsa Loquitur
The parties devote much of their briefing to res ipsa loquitur. 	But this is
not a "'peculiar and exceptional case[ ]'" to which res ipsa loquitur applies.20
Res ipsa loquitur allows a plaintiff to circumstantially establish a prima
facie case of negligence by the defendant without further direct proof.21 	It spares
the plaintiff from proving specific acts of negligence and shifts the burden to the
defendant 	to 	provide 	an 	explanation.22 	Courts 	apply 	res 	ipsa 	loquitur
"'sparingly... in peculiar and exceptional cases, and only where the facts and
the demands of justice make its application essential.'"23
Res ipsa loquitur applies where the party promoting it establishes three
elements: 	(1) the occurrence producing the injury was of a kind that ordinarily
does not occur in the absence of negligence, (2) the injury was caused by an
agency or instrumentality within the exclusive control of the defendant, and (3)
the 	injury-causing 	occurrence was not due to any contribution 	of the 	injured
party.24 	If any of these elements is missing, a presumption of negligence is
20 See The-Anh Nguyen v. City of Seattle. 179 Wn. App. 155, 173, 317
P.3d 518 (2014) (alteration in original) (internal quotation marks omitted) (quoting
Curtis v. Lien. 169 Wn.2d 884, 889, 239 P.3d 1078 (2010)).
21 Curtis. 169 Wn.2d at 894 (quoting Pacheco. 149 Wn.2d at 440-41).
22 Curtis. 169Wn.2dat894.
23 Curtis. 169 Wn.2d at 889 (internal quotation marks omitted) (quoting
Tinder v. Nordstrom. Inc.. 84 Wn. App. 787, 792, 929 P.2d 1209 (1997)).
24 Pacheco. 149 Wn.2d at 436-37 (quoting Zukowskv v. Brown. 79 Wn.2d
586, 593, 488 P.2d 269 (1971)).
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NO. 72858-0-1/10
unwarranted. 	The second and third elements are not contested here: 	the City
concedes that Elfrink-Thompson had exclusive control of the truck and does not
contend that Jeffrey was at fault.
The first element can be met in three ways:
"(1) When the act causing the injury is so palpably negligent that it
may be inferred as a matter of law, Le., leaving foreign objects,
sponges, 	scissors, 	etc., in the 	body, 	or amputation of a wrong
member; 	(2) when 	the 	general 	experience 	and 	observation 	of
mankind teaches that the result would 	not 	be expected without
negligence; and (3) 	when proof by experts in 	an esoteric field
creates an inference that negligence caused the injuries."[25]
The Burkes do not show the presence of any of these factors. 	First, a car
accident is not "so palpably negligent that it may be inferred as a matter of law"
like leaving a sponge in a patient or amputating the wrong leg.26 	Rather, a
plaintiff suing for negligence in a car accident still must prove duty, 	breach,
causation, and injury.27 	Second, the Burkes cite no case holding that in the
"general experience and observation of mankind" a driver does not lose control of
his vehicle without negligence. 	Given the unfortunate frequency of car accidents,
we decline to do so here. 	And third, car accidents are not "an esoteric field" such
that expert testimony would create an inference of negligence. 	Including car
25 	Pacheco. 	149 Wn.2d at 438-39 	(internal quotation 	marks 	omitted)
(quoting Zukowskv. 79 Wn.2d at 595).
26 see Cho v. City of Seattle, 185 Wn. App. 10, 16, 341 P.3d 309 (2014)
("The fact that an accident occurred does not, by itself, necessarily give rise to an
inference of negligence."), review denied. 183 Wn.2d 1007 (2015).
27 Cho. 185 Wn. App. at 16.
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accidents in that category would make the narrow qualifier "esoteric" effectively
meaningless.
The Burkes' Accident Reconstructionist
The Burkes also challenge the trial court's exclusion of their expert Steve
Harbinson's testimony that Elfrink-Thompson was likely speeding or distracted
when he crashed. 	Harbinson based his opinion on a scaled diagram of the
collision 	scene, 	the 	photographs 	taken 	immediately 	after 	the 	crash, 	his
experience, and Jeffrey's observations. 	He admitted having seen no physical
evidence 	that 	Elfrink-Thompson 	lost 	control 	because 	he 	was 	distracted 	or
speeding. 	The trial court excluded Harbinson's testimony as speculative and
lacking an adequate factual basis.
This 	court 	upheld 	exclusions 	of 	testimony 	from 	plaintiffs' 	experts 	as
speculative in Cho v. City of Seattle28 and Miller v. Likins.29 	In Cho. the experts
indicated that had the city installed a pedestrian island, the plaintiff would have
stopped and waited for traffic to proceed before attempting to cross the street
and that had the city installed a traffic light, the drunk driver would have stopped
at it.30 	This court found that the experts' testimony "contained] only conclusory
28 185 Wn. App. 10, 20, 341 P.3d 309 (2014), review denied. 183 Wn.2d
1007(2015).
29 109 Wn. App. 140, 149-50, 34 P.3d 835 (2001).
30 Cho, 185 Wn. App. at 19-20.
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NO. 72858-0-1 /12
allegations, unsupported by. . . facts."31 	In Miller, an accident reconstructionist
testified that in his opinion the defendant's car struck the plaintiff on the shoulder
of the road, not the roadway.32 The expert admitted the physical evidence fit the
defendant's claim that the plaintiff was standing in the street when he was hit,
just as well 	as 	it fit the 	plaintiff's claim 	that 	he 	had 	been 	standing 	on 	the
shoulder.33 	Noting the expert based 	his testimony entirely on one witness's
declaration, this court affirmed the trial court's finding that the expert's opinion
was speculative and lacked an adequate factual basis.34
Here, however, Harbinson's testimony was not speculative. 	Thus, the trial
court abused 	its discretion 	in excluding 	it. 	We distinguish 	Cho 	and 	Miller.
Neither case involved testimony about the likely cause of an accident, applying
the witness's expertise to photos and witness statements. 	Rather, the experts in
Cho speculated about what certain actors would have done had the city installed
safety features.35 	This court properly held that the experts' conclusions lacked
an adequate factual basis. 	The expert in Miller did not testify about the likely
cause of the accident but to where on the road the plaintiff was standing when
struck.36 The expert based his opinion on the testimony of a single witness, not
31 Cho. 185 Wn. App. at 20.
32 Miller. 109 Wn. App. at 149-50.
33 Miller. 109 Wn. App. at 149.
34 Miller. 109 Wn. App. at 149-50.
35 Cho. 185 Wn. App. at 20.
36 Miller. 109 Wn. App. at 149-50.
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NO. 72858-0-1/13
on the physical evidence. 	Thus, this court found that he based his opinion solely
on a decision to credit that witness, not on his expertise as applied to the facts.
In contrast, 	Harbinson made a complete review of the accident file, including
accident photos and the terrain of the hill, in addition to considering Jeffrey's
testimony. 	Harbinson applied his expertise as an accident reconstructionist to
this evidence to conclude that Elfrink-Thompson probably lost control because he
was distracted or speeding. 	The trial court therefore abused its discretion in
excluding Harbinson's testimony.
The City's Sudden-Incapacity Defense
The City argues that even if the Burkes can show a prima facie case of
negligence, 	it has 	a 	complete 	defense 	of sudden 	incapacity 	based 	on 	Dr.
Buchter's testimony. 	In response, 	the 	Burkes 	point to 	Dr. Corson's expert
testimony drawing the opposite conclusion.
Viewing the facts in the light most favorable to the Burkes, the record
shows a factual dispute about the City's defense of sudden incapacity, making
summary judgment inappropriate. 	Dr. Corson's declaration creates a genuine
issue of material fact as to whether Elfrink-Thompson suffered a heart attack that
caused him to lose control of the truck.
The City contends that Dr. Corson's testimony would be inadmissible at
trial as the product of ex parte contact between counsel and a treating physician
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NO. 72858-0-1 /14
of the opposing party. 	A court can consider only admissible evidence when
ruling on a motion for summary judgment.37 In Loudon v. Mhyre.38 the Supreme
Court held that defense counsel may not engage in ex parte contact with the
plaintiff's treating physician in a personal injury action. 	The City asserts that this
rule should apply here even though the contact was 	between counsel for a
plaintiff and 	a 	physician 	who 	read 	the 	medical 	records 	of 	the 	defendants'
decedent. 	The City further contends that Dr. Corson is a treating 	physician
because the Burkes identified him on a witness list in discovery as someone who
may testify to Elfrink-Thompson's treatment or medical records and because he
appears to fall under the definition of "health care provider" in the medical torts
statute.39
The Burkes deny that Dr. Corson was a treating physician. 	Dr. Corson
never met Elfrink-Thompson or 	his family or assisted 	in his treatment. 	Dr.
Corson only read Elfrink-Thompson's ECG tracings, among 100 or more others
that day, to "check that the data in the software-generated interpretation report
[wa]s correct."
The Supreme Court in Loudon justified its prohibition of ex parte contacts
with treating physicians because "[t]he mere threat that a physician might engage
37 Burmeisterv. State Farm Ins. Co.. 92 Wn. App. 359, 365, 966 P.2d 921
(1998).
38 110 Wn.2d 675, 675-76, 756 P.2d 138 (1988).
39 RCW 7.70.020(3).
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NO. 72858-0-1/15
in private interviews with defense counsel would, for some, have a chilling effect
on the physician-patient relationship and hinder further treatment."40 	The court
has 	since 	provided 	three 	more 	justifications: 	protecting 	the 	doctor-patient
fiduciary 	relationship, 	protecting 	doctors 	from 	potential 	liability for 	wrongful
disclosures, and avoiding situations where defense counsel would be called to
testify as an impeachment witness.41
We reject the City's proposed application of the Loudon rule here. 	We
agree with the Burkes that Dr. Corson was not a "treating physician." 	Even if we
agree that the Loudon rule can apply to contacts between a plaintiff's attorney
and a treating 	physician of the defendants' decedent, the City cites no case
applying that rule to a physician with such a tangential connection to the patient.
And none of the justifications for the Loudon rule would justify extending it to Dr.
Corson: 	allowing counsel to contact a doctor who 	reviews 	a 	patient's ECG
tracings among 100 others and has no interaction with the patient or effect on the
patient's treatment would not affect the doctor-patient relationship in the ways
Loudon was concerned with.
CONCLUSION
Because the Burkes' evidence that Elfrink-Thompson crossed the center
line created a genuine issue of material fact as to breach, the trial court erred in
40 Loudon, 110 Wn.2d at 679.
41 Youngs v. PeaceHealth. 179 Wn.2d 645, 659-60, 316 P.3d 1035 (2014).
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NO. 72858-0-1/16
granting 	summary judgment for 	the 	City. 	And 	because 	genuine 	issues 	of
material fact exist about the City's sudden-incapacity defense, we decline to
affirm summary judgment on the basis of this defense. 	We therefore reverse and
remand for further proceedings.
WE CONCUR:
^Lik^U
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